Opinion
No. M2007-01797-COA-R3-CV.
May 8, 2008 Session.
Filed June 30, 2008.
Appeal from the Circuit Court for Davidson County; No. 05-D-939; Carol Soloman, Judge.
Judgment of the Circuit Court Affirmed.
Paula Ogle Blair, Nashville, Tennessee, for the appellant, Lance E. Eastman.
Timothy T. Ishii, Nashville, Tennessee, for the appellee, Leilani K. Eastman.
Frank G. Clement, Jr., J., delivered the opinion of the court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.
OPINION
The appellant, Father, was found guilty of fourteen counts of criminal contempt for his failure to pay child support, for which he was sentenced to 140 days in jail. Father admitted that he only paid $20.00 in child support for eighteen months although the court order expressly directed that he remit $372.000 per month; however, he contended the payment of the lesser amount was due to confusion and instructions from his former attorney. The Final Divorce Decree erroneously directed Father to pay $20.00 per month in child support. A corrected order, which expressly acknowledged the error in the initial decree, directed Father to pay $372.00 per month. It is undisputed that Father and his counsel received the corrected order. Following an evidentiary hearing, the trial court found Father was not a credible witness, that he had the ability to pay and that his payment of $20.00 per month for fourteen consecutive months following receipt of the corrected order constituted willful disobedience of the court's order. We have determined the evidence established beyond a reasonable doubt that Father had the ability to pay the child support obligations as and when they became due, that his failure to pay the correct amount for fourteen months following the receipt of the corrected order was willful, that he was guilty of fourteen counts of criminal contempt, and that the sentence of ten days for each offense for a total of 140 days is appropriate. Accordingly, we affirm the judgment of the trial court.
Leilani Eastman ("Mother") and Lance Eastman ("Father") were divorced on July 8, 2005. The child support worksheet submitted with the Final Divorce Decree entered on January 23, 2006, ordered Father to pay Mother $20.00 per month in child support. However, Mother timely filed a Tenn. R. Civ. P. 59 motion to increase Father's child support obligation to $372.00 per month. The trial court granted Mother's motion, and a second order was entered on May 17, 2006, which, among other things, increased Father's child support obligation to $372.00 per month, retroactive to January 23, 2006.
On July 3, 2007, Mother filed a Petition For Contempt and to Designate the Mother as the Primary Residential Parent. In the petition, Mother alleged, inter alia, that Father had paid only $20.00 per month for eighteen consecutive months resulting in an arrearage of $6,337.00. A day or two before trial, Father paid the entire arrearage; nevertheless, the petition for contempt went to trial.
At the trial on the Petition for Contempt, Father contended that he was not in willful contempt because he was confused as to which amount to pay each month. Father testified that he was told by his attorney to only pay $20.00 per month. Furthermore, Father testified that he had paid one-half of the summer camp costs two weeks earlier, which he was not required to do.
Ms. Blair, who is Father's counsel on appeal, was not Father's counsel at the time Father was allegedly told by his then attorney to not pay child support in the amount stated in the corrected order.
The trial court found Father "in willful criminal contempt for fourteen (14) violations of this Court's order for failure to pay child support and is hereby sentenced to one hundred forty (140) days in the Metropolitan-Davidson County Jail day for day with zero percent (0%) work release." Moreover, the trial court found Father was "not a credible witness" and "had the ability to pay." This appeal followed.
STANDARD OF REVIEW
A person charged with criminal contempt is "presumed innocent and may not be found to be in criminal contempt in the absence of proof beyond a reasonable doubt that they have willfully failed to comply with the court's order." Long v. McAllister-Long, 221 S.W.3d 1, 13 (Tenn.Ct.App. 2006) (citing Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996); Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn.Ct.App. 1993)). A guilty verdict removes the presumption of innocence, and it is replaced with a presumption of guilt. Black v. Blount, 938 S.W.2d at 399. Thus, on appeal, the defendant has the burden of illustrating why the evidence is insufficient to support the verdict. Id. When the sufficiency of the evidence in a criminal contempt case is raised in an appeal, this court must review the record to determine if the evidence in the record supports the finding of fact of guilt beyond a reasonable doubt, and "if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt" we are to set aside the finding of guilt. See Tenn. R. App. P. 13(e) (directing that "findings of guilt in criminal actions shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt") (emphasis added).
ANALYSIS CRIMINAL CONTEMPT
The principal issue on appeal is whether there was sufficient evidence to find Father guilty of fourteen counts of criminal contempt for failing to pay child support in the amount ordered by the court.
Before a court may find that a party's failure to pay child support was contemptuous under Tenn. Code Ann. § 29-9-102, the court first must determine that the party "had the ability to pay at the time the support was due and then determine that the failure to pay was wilful." Ahern v. Ahern, 15 S.W.3d 73, 79 (Tenn. 2000). Ability to pay and the willful failure to pay are distinct and separate elements, Foster v. Foster, No. M2006-01277-COA-R3-CV, 2007 WL 4530813, at * 6 (Tenn.Ct.App. Dec. 20, 2007), and both must be proven beyond a reasonable doubt in order to find a person in criminal contempt. State ex rel. Murray v. Neiswinter, No. M2005-01983-COA-R3-CV, 2007 WL 565823, at *6 (Tenn.Ct.App. Feb. 23, 2007); McPherson v. McPherson, No. M2003-02677-COA-R3-CV, 2005 WL 3479630, at *4 (Tenn.Ct.App. Dec. 19, 2005).
There are few relevant facts to consider on appeal, and those facts are generally undisputed. The parties were granted a divorce in January of 2006. The Final Divorce Decree, entered on January 23, 2006, ordered Father to pay Mother $20.00 per month in child support, which was not the correct amount of child support. Mother timely filed a Tenn. R. Civ. P. 59 motion to correct the mistake. The trial court granted the motion and corrected the mistake pursuant to an order entered on May 17, 2006 (the "corrected order"). The order reads:
It is ORDERED, ADJUDGED, and DECREED that the correct child support obligation of Father from the entry of the Final Decree of Divorce on 01/23/2006 should have been $372.00 which included the child care provision instead of $20.00 per month and therefore the Father's current child support obligation is increased to $372.00 per month retroactive to 01/23/06.
It is undisputed that Father and his counsel received timely notice of the entry of the corrected order. Although Father received the corrected order, he did not increase his monthly payments of child support as ordered. Instead, he continued to pay the incorrect amount of $20.00 per month. It is undisputed that Father timely paid the incorrect amount of $20.00 per month every month from the entry of the Final Decree until the eve of the hearing on the Petition for Contempt, at which time he paid the entire arrearage in one lump sum payment.
At the contempt hearing, Father testified that he was aware of the corrected order and the fact he was ordered to pay child support in the amount of $372.00 per month. In his defense, however, he contended that he was "confused" as to which amount to pay. He additionally testified that his attorney had instructed him to ignore the corrected order and only pay $20.00 per month. The attorney who allegedly told him to ignore the corrected order did not attend the contempt hearing and did not testify by affidavit or otherwise. Considering the foregoing facts and Father's testimony, it is not at all surprising that the trial court made the following finding: "The Court finds that the Father is not a credible witness." The trial court made two additional and significant findings: "The Father knew of the Order to pay child support and he refused to pay. Further, the Father had the ability to pay."
It is undisputed, and thus there is proof beyond a reasonable doubt, that Father had the ability to pay child support when it was due in the amount of $372.00, but willfully chose to pay only $20.00 per month for at least fourteen months following notice of the entry of the corrected order. Thus, the ability to pay $372.00 per month and the willfulness of Father's failure to pay was established beyond a reasonable doubt.
We now move on to another aspect of Father's defense, which is the novel defense that his former lawyer told him he could ignore the court's order and, therefore, he is not in contempt of court for knowingly ignoring the order. Unfortunately for Father, his defense that "my lawyer told me not to" is about as convincing to the court as "my dog ate my homework" is to a teacher. This would appear to be one of the reasons the trial court found Father was not a credible witness. More significantly, it is well established that "[a]dvice of counsel is no excuse for failure to obey an order, but may be considered in mitigation of the offense, if done in good faith." Churchwell v. Callens, 252 S.W.2d 131, 137 (Tenn.Ct.App. 1952).
Intertwined with the legal advice defense is the assertion by Father that he did not believe he had to obey the order because Mother had perfected an appeal from the Final Decree of Divorce and it was still pending. Unfortunately, this argument does not hold water. A child support order is a judgment entitled to be enforced in the same manner as any other judgment issued by a court, Tenn. Code Ann. § 36-5-101(f)(1); In re Adoption of Hayes, No. W2006-00156-COA-R3-CV, 2007 WL 845906, at *3 (Tenn.Ct.App. Mar. 21, 2007) (no Tenn. R. App. P. 11 application filed), and the entry of a judgment is a significant procedural milestone because "it is the event that renders the judgment effective and enforceable." Muesing v. Ferdowsi, No. 01-A-019005CV00156, 1991 WL 20403, at *3 (Tenn.Ct.App. Feb. 21, 1991). More unfortunately for Father, the fact an appeal is taken from a final judgment in child custody or child support actions does not suspend the effect or enforceability of the child support order. The trial court, in its discretion, may suspend the effect or enforcement of a judgment pending appeal or may grant additional or modified relief it deems appropriate during the pendency of an appeal. See Tenn. R. Civ. P. 62.03. That fact, however, provides no relief or defense to Father in the case at bar because Father did not ask to stay or suspend the enforcement of the corrected order or the child support award. Moreover, Father did not perfect an appeal from the corrected order or otherwise challenge the increase in his child support obligation.
Mother subsequently appealed the trial court's custody determination and parenting plan to this court. On appeal, this court affirmed the parenting plan and remanded the case to the trial court in order to designate a single primary residential parent. Eastman v. Eastman, No. M2006-01134-COA-R3-CV, 2007 WL 1227042, at *1 (Tenn.Ct.App. April 25, 2007) (no Tenn. R. App. P. 11 application filed).
Mother perfected an appeal from the Final Decree of Divorce but the issues on appeal did not pertain to the child support award; moreover, no stays or relief from the effect of the Final Decree of Divorce were sought or granted.
Mother appealed the trial court's custody determination and parenting plan set forth in the Final Decree of Divorce, and no stay or relief from that judgment was sought or granted pending appeal.
The final component of Father's argument is that finding him guilty of fourteen counts of criminal contempt is excessive because Mother waited more than fourteen months to complain that he was not paying the correct amount of support. The premise of this argument is that Mother's delay of more than fourteen months to complain or file a contempt petition mitigates Father's alleged willful disobedience of the corrected order. Although there may be circumstances whereby the repeated failure of the parent receiving child support to notify the other parent that the payment was late, incorrectly addressed, or not in the correct amount may constitute a defense to a petition for criminal contempt, this is not such a case. Here, Father was fully aware that the court had ordered him to pay $372.00 per month to Mother and he knowingly and willfully remitted only $20.00 per month for at least fourteen months after receiving the corrected order. More significantly, and as a matter of law, the main fallacy with this argument is that Father's willful disobedience of the corrected order does not constitute an act of contempt against Mother; it constitutes an act of contempt against the authority of the court. See Tenn. Code Ann. § 29-9-102(3); Cottingham v. Cottingham, 193 S.W.3d 531, 538 (Tenn. 2006). Another problem with this argument is that child support is for the benefit of the child(ren), not the parent, see Tenn. Code Ann. § 36-5-101(a)(1), and the court has a duty to assure that child support is paid as and when it is due. We therefore find no merit to the contention that the trial court erred in finding him guilty of fourteen counts of criminal contempt due to the fact Mother failed to complain earlier.
Considering all of the evidence in the record, we find the evidence established beyond a reasonable doubt that Father had the ability to pay the child support obligations as and when they became due and that his failure to pay the correct amount for more than fourteen months following the receipt of the corrected order was willful. We also find that Father has failed to overcome on appeal the presumption of his guilt of fourteen counts of criminal contempt and that the sentence of ten days for each offense for a total of 140 days is appropriate. Accordingly, we affirm the judgment of the trial court.
Frivolous Appeal
For her part, Mother has requested that we declare this appeal frivolous and award her costs and attorney's fees on appeal. Had the only issue been whether Father was in contempt, we would be inclined to do so. However, Father's contention that finding him guilty of fourteen counts of criminal contempt was excessive due to the fact Mother knew the payments were deficient and did not complain was worthy of our review. Accordingly, we respectfully decline the invitation to declare this appeal frivolous.
IN CONCLUSION
The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal assessed against Father.